12-000497PL Department Of Health, Board Of Medicine vs. James Sotrop, M.D. Status: Closed Recommended Order on Monday, July 2, 2012.

Summary: Failure to keep adequate or accurate records is not medical malpractice as prohibitted by section 458.331(1)(t). Department of Health failed to prove medical malpractice by failing to prove the applicable standard of care or violation of it.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE , )

)

Petitioner , )

)

vs. ) Case No. 12 - 0497PL

)

JAMES SOTROP, M.D. , )

)

Respondent . )

)

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings, heard this case, as noticed,

on April 10 , 2012, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Jonathan Zachem, Esquire

Shi rley Bates, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Brian A. Newman, Esquire

Pennington, Mo ore, Wilkinson,

Bell and Dunbar, P.A.

Second Floor

215 South Monroe Street

Tallahassee, Florida 32302 - 2095

STATEMENT OF THE ISSUES

A. Did Respondent, James Sotrop, M.D. (Dr. Sotrop) ,

violate section 458.331 (1) (t), Florida Statutes (2007) , 1/ by

committing medical malpractice by failing to adequately assess

patient P.A.'s complaints and symptoms?

B. Did Dr. Sotrop violate section 458.331(1)(t) , Florida

Statutes , by c ommitting medical malpractice by failing to order

diagnostic imaging studies and laboratory tests for P.A.?

C. Did Dr. Sotrop violate section 458.331(1)(t) , Florida

Statutes , by committing medical malpractice by failing to

document a complete patient hist ory and physical examination?

D. Did Dr. Sotrop violate section 458.331(1)(t) , Florida

Statutes , by committing medical malpractice by failing to

immediately refer P.A. to the emergency department of a hospital

on January 14, 2007?

E. Did Dr. Sotrop viola te section 458.331(1)(t) , Florida

Statutes by committing medical malpractice by failing to refer

P.A. for specialized consultations?

F. Did Dr. Sotrop violate section 458.331(1)(t) , Florida

Statutes by committing medical malpractice by making an

inappropr iate diagnosis of P.A.'s condition?

G. Did the Petitioner, Department of Health (Department) ,

fail to properly notify Dr. Sotrop of its investigation and

provide an opportunity to respond to the allegations before

determining probable cause? If so, do se ctions 456.073(1) and

458.331(9), Florida Statutes , require dismissal of the

complaint? 2/

PRELIMINARY STATEMENT

The Department filed its Administrative Complaint with the

Board of Medicine against Dr. Sotrop on May 13, 2009. The

complaint alleged that Dr . Sotrop violated

section 458.33 1 (1)(t), Florida Statutes , by committing medical

malpractice by failing to "practice medicine in accordance with

the level of care, skill, and treatment recognized in general

law related to health care licensure. On June 12 , 2012, Dr.

Sotrop filed a Motion to Dismiss or, in the Alternative, Request

for Hearing Involving Disputed Issues of Material Fact. The

Department referred the matter to the Division of Administrative

Hearings for a ruling upon the motion and conduct of a hearing.

The hearing was noticed for April 10, 2012, and held as noticed.

The hearing on the motion and the complaint were consolidated.

The hearing transcript was filed on April 26, 2012. Upon

the parties' motions, the time period for filing propos ed

recommended orders was extended until May 31, 2012. The parties

timely filed P roposed R ecommended O rders which have been

considered in preparation of this Recommended Order.

In the hearing, the Department presented the testimony of

Charles K. Powers, J r., M.D. Department Exhibits 1 through 3,

and 5, were admitted into evidence.

Dr. Sotrop testified on his own behalf and offered no other

witnesses. Exhibits 2 through 4 , of Dr. Sotrop were admitted

into evidence .

Judge's Exhibit 1, a transcript of the deposition of

Dr. Powers was admitted, not as evidence , but to include in the

record the basis of a ruling upon an objection.

FINDINGS OF FACT

1. The Department is the state agency charged with the

licensing and regulation of medical doctors pursuant to

section 20.43 , and chapters 456 and 458, Florida Statutes.

2. At all times material to the allegations in the

Administrative Complaint, Dr. Sotrop was a licensed medical

doctor within the State of Florida, having been issued license

number ME 41092.

3. Dr. Sotrop's address of record with the Department of

Health is P ost O ffice Box 1628, Lutz, Florida , 33548. He has

used this address for mailing purposes for 10 to 15 years.

4. The Department mailed a copy of the complaint against

Dr. Sotrop and its i nvestigation in this matter to P ost O ffice

Box 1628, Lutz, Florida , 33548.

5. Dr. Sotrop says the he "believes" that he did not

receive it. This testimony is not sufficiently persuasive to

establish that he did not receive the notice.

6. Dr. Sotrop co mpleted medical school at the Medical

School of Wisconsin and started working with his fatherÓs family

medical practice in Lutz, Florida. Florida licensed Dr. Sotrop

to practice medicine in Florida in 1982.

7. Although Dr. Sotrop intende d to attend a res idency

program after practicing medicine with his father for a short

time, he never left his fatherÓs practice and thus never attended

a residency program. Dr. Sotrop is not board eligible in family

medicine because he never attended a residency program.

8. Dr. Sotrop assumed his fatherÓs practice and operated as

a solo practitioner until he sold the practice to a large group.

After working for the group practice for several years,

Dr. Sotrop left the group in 2006 and started to rebuild his solo

pract ice.

9. While he was rebuilding his practice, Dr. Sotrop worked

part - time for a colleague at the New Tampa Urgent Care walk - in

clinic. He started working at the walk - in clinic in early

January of 2007.

10. Dr. Sotrop eventually rebuilt his medical prac tice and

stopped working at the walk - in clinic. He currently maintains a

solo medical practice.

11. New Tampa Urgent Care utilized an electronic medical

record keeping system known as Amazing Charts. This was

Dr. SotropÓs first exposure to an electron ic medical record

keeping system. Dr. Sotrop is a Ðhunt and peckÑ or Ðtwo - fingerÑ

typist. He had previously maintained only hand - written medical

records. The Amazing Charts system requires physicians to enter

some of the information regarding patient vi sits into the system

by manually typing. Because of his lack of familiarity with the

Amazing Charts system and his poor typing skills, Dr. Sotrop

limited the information he included in patient records using the

Amazing Charts.

January 13th Patient Visit

1 2. Patient P.A. first presented to the walk - in clinic on

January 13, 2007 , with a chief complaint of right - sided facial

pain and weakness of the face. Dr. Sotrop saw her.

13. P.A. reported a history of right - sided facial pain for

two to three days, an d right - sided facial droop that started that

morning. Her right eyelid was swollen.

14. P.A.Ós vital signs were: temperature of 101 degrees;

blood pressure of 114 over 70 (which was normal); pulse rate of

138; and respiratory rate of 18.

15. Dr. Sotr op examined P.A., following his routine

physical - examination process. The process, as Dr. Sotrop

generally described during his testimony, consists of observing

the patientÓs gait as they walk to look for any abnormalities.

He then examines both ears and both nostrils. He examines the

patientÓs mouth in the traditional method, checks the neck for

movement, and palpates the neck and upper body for swollen lymph

glands. He listens to the patientÓs heart and lungs and, if

appropriate for the presentation, asks the patient to lie down so

he can perform an abdominal examination. While performing the

physical examination, he talks to the patient and asks questions

so he can verify whether the patientÓs mental status is normal.

16. Dr. Sotrop observed P.A.'s gait, examined her eyes

(including a fluorescein and fundus examination of the eye s ), and

examined her face and mouth which included her ability to swallow

and move her jaw normally.

17. Dr. Sotrop documented his physical examination findings

for P.A. dur ing the January 13th visit as follows:

Rt lower facial droop not involving forehead.

HEENT neg. ex sl grn d/c nares and eryhema

rtconj, fluoro neg. no rash (yet) neck supple

Dr. Sotrop interpreted this entry in the patientÓs record during

his testimony a s follows:

The patient had a right - lower facial droop

not involving her forehead. The head, eyes,

ears, nose and throat examination were

negative except for a slight green discharge

from the right nares (or nasal passage) and

there was redness of the righ t conjunctiva

(the white part of the eye) . . . I did a

fluorescein examination of the eye which

involves putting a drop in the eye and using

a special light and looked at the eye and it

was normal, negative. There was no rash on

the face, and I put in p arentheses, ÐyetÑ

because I expected oneÈ And the neck was

supple.

18. Dr. Sotrop explained that he documented Ðno rash (yet)Ñ

because he believed the patient most likely had shingles and

would soon develop a rash consistent with this diagnosis.

19. D r. Sotrop's records document that the patientÓs neck

was supple to document that her neck was not stiff or painful.

20. Dr. Sotrop found the patientÓs mental status normal.

As he noted, she was well enough to drive herself to the office.

21. Dr. Sotr op determined that the patient was suffering

from either BellÓs palsy or S hingles. In the medical record

under A/P (or assessment and plan) , he documented ÐBellÓs Palsy

(351.0), Herpes Zoster of Eyelid (053.20).Ñ Dr. Sotrop selected

these possible altern ative diagnoses from a drop - down menu from

the Amazing Charts program. ÐHerpes ZosterÑ is another name for

shingles. He selected Herpes Zoster of the Eyelid because that

was the only Herpes Zoster diagnosis he could find in the Amazing

Charts drop down m enu at the time.

22. Dr. Sotrop discussed his impressions with the patient.

He told her that he was not sure whether she had BellÓs palsy or

shingles.

23. Dr. Sotrop told the patient to call him back or go to

the emergency room if her symptoms got wors e. He documented this

advice in the records using the drop - down menu of the Amazing

Charts system: Ðre check 2 - 3 days sooner , if worse , d iscussed

natural and expected course of this diagnosis , and need to alert

me if symptoms do not follow expected cours e, or if any worse.

Re - check or go to ER if symptoms get worse.Ñ

24. Dr. Sotrop prescribed Prednisone, a steroid for

treatment of suspected BellÓs palsy, Vicodin for pain, and

Acyclovir, an antiviral drug to treat the patient for suspected

shingles. The Department did not question Dr. SotropÓs

prescription of these medications.

25. Dr. SotropÓs records do not indicate that, on January

13, he considered the possibility that the patient had

meningitis.

26. During the January 13 visit, P.A. did not present the

typical complete constellation of symptoms for meningitis. A

stiff or painful neck and confused mental status are two common

signs of meningitis.

27. Dr. Sotrop's records do not indicate that he advised

P.A. on January 13 to go to an emergen cy room for additional

testing , such as a CT scan or spinal tap , to rule out or confirm

more serious conditions like a tumor, meningitis, or other

infection. Dr. Sotrop's demeanor during his testimony and

inconsistencies in testimony make his claim that h e advised P.A.

to go to an emergency room or obtain further testing not

credible. The testimony is not logically consistent with the

fact that Dr. Sotrop entered in the records the much less

significant information that he advised the patient to return or

visit an emergency room if her symptoms did not improve. And it

is not consistent with his stated beliefs about the uses and

importance of records for patient care, insurance, and legal

concerns.

January 14th Patient Visit

28. P.A. called the walk - in clinic the following day,

Sunday, January 14th, and told the nurse that she was still

having headaches and that the pain medication was not helping.

Dr. Sotrop told the nurse that he wanted the patient to return to

the office for further evaluation.

29. P.A. drove herself to the walk - in clinic for the return

visit.

30. During this visit , she complained of nausea and

vomiting and headache.

31. The patientÓs vital signs had improved. Her

temperature was now normal, 97.8, and her blood pressure was

124/84 . P.A.'s pulse rate had come down to 126, and her

respiratory rate was slightly higher, at 20.

32. Dr. Sotrop repeated the physical examination he

conducted on January 13th. P.A.'s neck was still supple. And

her mental status was normal.

33. The pati entÓs facial symptoms had significantly

improved from the January 13th visit. Dr. Sotrop documented

Ðfacial symptoms much betterÑ and Ðexam shows near full return of

facial movement and full closure of eye.Ñ Dr. Sotrop also

documented that P.A. still had no rash.

34. Dr. Sotrop tapered the prescription for Prednisone and

asked P.A. to hold Acyclovir for 12 hours because headaches are a

known side effect of these medications. He also gave her an

injection of Phenergan during the visit for nausea.

35. D r. SotropÓs records do not indicate that on January

14th he considered the possibility that the patient had

meningitis. They indicated, as on the 13 th he told the patient

to return or got to an emergency room if her condition worsen.

36. A stiff or painf ul neck and confused mental status are

two common signs of meningitis. During the January 14th visit,

P.A. did not present the typical complete constellation of

symptoms for meningitis.

37. Dr. Sotrop's records do not indicate that he advised

P.A. on Jan uary 14 th to go to an emergency room for additional

testing such as a CT scan or spinal tap to rule out or confirm

more serious conditions like a tumor, meningitis, or other

infection. Dr. Sotrop's demeanor during his testimony and

inconsistencies with hi s other testimony make his claim that he

advised P.A. to go to an emergency room or obtain further testing

is not credible. The testimony is not logically consistent with

the fact that Dr. Sotrop entered in the records the much less

significant informatio n that he advised the patient to return or

visit an emergency room if her symptoms did not improve. And it

is not consistent with his stated beliefs about the uses and

importance of records for patient care, insurance, and legal

concerns.

January 15th H ospital Admission

38. On January 15th, P.A.'s daughter found her

unresponsive. P.A. was taken to the University Community

H ospital by ambulance and placed in the I ntensive C are U nit.

39. Dr. Sotrop was not consulted on this hospital

admission. But he did visit the patient after he learned of her

admission.

40. P.A. was unresponsive when she was admitted to the

hospital. Her condition did not improve. A lumbar puncture

showed possible bacterial meningitis. P.A. died about 48 hours

after her admiss ion to University Community Hospital . The

patientÓs final diagnoses included acute bacterial meningitis and

Ðpossibly shingles.Ñ

CONCLUSIONS OF LAW

Jurisdiction

41. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with sections 120.569 and 120.57(1), Florida

Statutes (2011).

Motion to Dismiss

42. Section 458.331(9), Florida Statutes (2007) requires

the Department to promptly furnish a physician being

investigated a copy of the complaint or document that resulted

in the initiation of the investigation. Section 456.073(1),

Florida Statutes (2007) , imposes a similar requirement and gives

the doctor a right to submit a written response. The probable

cause panel must consider the written response. Dr. Sotrop

argued in his M otion to D ismiss that the Department did not

provide the required notice and that the A dministrative

C omplaint therefore must be dismissed.

43. Dr. Sotrop did not present persuasive evidence that

the Department did not provide the required notice. The

evidence, however, proves that the Department mailed the notice

to Dr. Sotrop's address of record. Service by regular mail to a

licensee's last known address of record with the Department is

adequate and sufficie nt notice for any official communication to

the license e by the Department. § 456.035(2), Fla. Stat. The

Department fulfilled its obligation to provide Dr. Sotrop notice

of the complaint initiati ng the investigation in this matter.

See Griffis v. DepÓ t . Bus. & Prof Ól Reg. , 37 Fla. L. Weekly D

488 (Fla. 1st DCA Feb . 23, 2012).

Burden of Proof

44. This is a proceeding to take disciplinary action

against Respondent's license to practice as a physician.

Because of the penal nature of these proceedings, th e Department

has the burden of proving the allegations in the Administrative

Complaint by clear and convincing evidence. Nair v. Dep Ó t . of

Bus . & Prof Ó l Reg . , Bd. of Medicine , 654 So. 2d 205, (Fla. 1st

DCA 1995). As stated by the Supreme Court of Florida ,

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts in issue. The evidence must be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) ; ( quoting Slomowitz

v. W alker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983) ) .

45. Moreover, in disciplinary proceedings, the statutes and

rules for which a violation is alleged must be strictly construed

in favor of Respondent. Elmariah v. Dep't . of Prof'l Reg. , 574

So. 2d 164 (Fla . 1st DCA 1990); Taylor v. Dep't . of Prof'l Reg. ,

534 So. 2d 782, 784 (Fla. 1st DCA 1988).

Malpractice Charges

46. The one count Administrative Complaint alleges that

Dr. Sotrop violated section 458.331(1)(t) , Florida Statutes, by

committing malpractice. That applicable part of that section

defines the charged violation as follows:

Notwithstanding s. 456.072(2) but as

specified in s. 456.50(2):

1. Committing medical malpractice as

defined in s. 456.50. The board shall give

great weight to the provisio ns of s. 766.102

when enforcing this paragraph. Medical

malpractice shall not be construed to

require more than one instance, event, or

act.

47. Section 456.50(1)(g) defines "medical malpractice" as:

T he failure to practice medicine in

accordance with the level of care, skill,

and treatment recognized in general law

related to health care licensure. Only for

the purpose of finding repeated medical

malpractice pursuant to this section, any

similar wrongful act, neglect, or default

committed in another s tate or country which,

if committed in this state, would have been

considered medical malpractice as defined in

this paragraph, shall be considered medical

malpractice if the standard of care and

burden of proof applied in the other state

or country equale d or exceeded that used in

this state.

48. The Administrative Complaint alleges the following

actions or inactions amounted to the charged malpractice :

(a) Respondent failed to adequately assess

patient PA's complaints and symptoms;

(b) Respondent fai led to order diagnostic

imaging studies and laboratory tests;

(c) Respondent failed to document a

complete patient history and physical

examination;

(d) Respondent failed to immediately refer

patient PA to the emergency department on

January 14, 2007;

(e) Respondent failed to refer patient PA

for specialized consultations;

(f) Respondent's diagnosis of patient PA's

condition was not appropriate.

49. The allegations in (c) of record keeping deficiencies

are not allegations of malpractice under sect ion 458.331(1)(t) .

If proven they would not establish a violation. Dep't . of

Health v. Lee , Case No. 11 - 0922PL (Fla. DOAH Sept. 23, 2011;

Fla. DOH Dec. 12, 2011).

50. The Department failed to meet its burden of proof for

the remaining allegations.

51. The Department's case rest s on the opinion testimony

of its expert witness. The witness testified how he would have

treated a similar patient. He made broad critical observations

about matters that did not appear in Dr. Sotrop's records and

identified th ings that he would have done differently.

52. But the Department failed to elicit persuasive

testimony establishing the standard of care for a general

practice physician like Dr. Sotrop practicing in a walk - in

clinic. The Department also failed to elicit persuasive

testimony that applicable standards of care had not been met.

53. The Department bears the burden of proving its charges

by clear and convincing evidence. Nair v. Dep Ó t . of Bus . &

Prof Ó l Reg . , Bd. of Medicine , Id. It simply did not meet t hat

burden.

RECOMMENDATION

Upon consideration of the facts found and conclusions of

laws reached, it is RECOMMENDED that the Florida Board of

Medicine deny the Motion to Dismiss and enter a Final Order

dismissing the Administrative Complaint in its entiret y.

DONE AND ENT ERED this 2nd day of July , 2012 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallaha ssee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of July , 2012 .

ENDNOTES

1/ All citations are to the 2007 edition of the Florida Statut es

unless otherwise noted.

2/ The parties were provided an opportunity to propose findings

of facts and conclusions of law and to advance argument on this

issue in their proposed reco m mended orders. The Department did.

Dr. Sotrop did not, indicating ab andonment of the issue. None -

the - less this Recommended Order rules on the issue in the event a

reviewing tribunal determines the issue was not abandoned.

COPIES FURNISHED :

Brian A. Newman, Esquire

Pennington, Moore, Wilkinson,

Bell and Dunbar, P.A.

2 15 South Monroe Street, 2nd Floor

Post Office Box 10095

Tallahassee, Florida 32302

Jonathan Zachem, Esquire

Shirley L. Bates, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

Joy Toole, Executive Director

Boa rd of Medicine

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

Jennifer Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPT IONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.